#### Jeremiah Sullivan *et al.,*Resp’ts, *v.*The New York & Rosendale Cement Co., App’lt.1

*(Court of Appeals,*

*Filed February 25, 1890.)*

*1.*Contract—Breach op by stoppage op work.

Plaintiffs contracted to construct a tunnel in defendant’s quarry, defendant to supply the materials. On December 30 work was suspended, at defendant’s request, for two weeks, as plaintiffs claim; at the end of which time they offered to perform and continued to do so until February 11, when they wrote demanding an immediate reply. Defendant, on February 19, sent word that they might proceed, but plaintiffs had meanwhile procured work elsewhere. Defendant claimed that no time was specified for the suspension; that work was not to be resumed until the commencement of the general work in the quarries. *Held,*that the questions as to how long the work was to he suspended and whether defendant’s delay to notify plaintiffs to resume work was reasonable, were for the jury to determine.

3. Same.

The question whether a delay is reasonable or not is generally a question of law, but only where the facts are clearly established or are undisputed or admitted. If they are not clearly established, or if the question of time depends on other controverted facts, or when the motives of a party enter into the question, it must be submitted to the jury as a question of fact.

3. Pleading—Demurrer—Nonjoinder.

In order to make a complaint demurrable for nonjoinder of parties plaintiff, it is not necessary that it should affirmatively show that such parties were living at the commencement of the action. If the other necessary facts appear, the usual presumption of life applies for this purpose.

Appeal from a judgment of the supreme court, general term, third department, affirming judgment for plaintiff entered upon a verdict of a jury.

*John J. Linson,*for app’lt; *D. M. De*Witt, for resp’ts.

1

 Affirming 16 N. Y. State Rep., 462.

O’Brien, J.

The plaintiffs recovered damages in this action for the breach of a contract to construct a tunnel at the defendant’s cement works. It appears that on the 15th day of August, 1884, the plaintiffs, Sullivan and Foley, with James En-right and Patrick Bradley, as joint contractors, entered into a written' contract with the defendant, whereby they undertook to *748construct and complete a tunnel, or shaft, in the defendant’s quarry, the dimensions of which were therein particularly stated. The defendant, on its part, agreed to pay the contractors for the construction of the tunnel fourteen dollars per face or running foot, up to April 1, 1885, and after that date the sum of sixteen dollars per face or running foot, until the tunnel should be completed. The defendant was to furnish the necessary materials and the plaintiffs were to perform the labor, and work was to be commenced August 17, 1884.

The complaint alleged the execution and delivery of the contract, and that before any breach thereof Bradley and Enright, two of the original contractors, with the consent of the defendant and of their two associates before named, abandoned the work on account of ill health and left the performance of the contract to their associates, who continued the work and received the contract price per foot from the defendant from time to time as the work was performed. That on January 2,1885, the plaintiff, Daniel Buckley, became, with the consent of the defendant and Sullivan and Foley, one of the contracting parties in the place of the other two who, as before stated, had abandoned the work. At this time Buckley was substituted as a party by formally executing the original paper, the defendant assenting thereto. That on the 20th of December, 1885, the plaintiffs, at the request of the defendant, consented to the suspension of the work for two weeks, and not longer. That at the expiration of that time the plaintiffs.presented themselves at the tunnel and at the defendant’s place of business, and offered to resume the work under the contract, but the defendant would not permit them to do so nor furnish them the necessary materials to continue it. That the plaintiffs, after that time, from day to day continued to hold themselves in readiness to go on with the contract and signified to the defendant their willingness to do so, but were not permitted to by the defendant, until at last the plaintiffs were compelled, by necessity, to seek other employment. That plaintiffs were thereby subjected to loss, and damages were demanded for a breach of the contract. The defendant denied all these allegations and set up as a special defense that there was a defect of parties plaintiff, in that James Enright and Patrick Bradley, who were still living, were jointly interested with the plaintiffs in the cause of action, but were not joined as plaintiffs.

On the trial the written contract, as changed by the substitution of Buckley, was produced, and there was no controversy in regard to its execution, delivery or validity. As to the breach alleged by the plaintiffs there was conflicting evidence, the plaintiffs claiming that the suspension was for two weeks only, while the defendant claimed that no time was specified for resuming the work, or at all events it was not to be resumed until the commencement of the other general work upon the quarries which had been suspended at the same time.

Evidence was given by both parties on this question, and it appeared' that on the 18th of December, 1885, the defendant’s agent and the plaintiffs agreed to a temporary suspension of the *749work on the contract, and the work was accordingly suspended, the plaintiffs having been paid the balance due them for work up to that time. At the same time the general work in the quarries was also suspended and was not fully resumed until on or about the 25th of January following. After the expiration of the two weeks several conversations took place between the plaintiffs and the defendant’s agent in regard to a resumption of the work under the contract in question; but the defendant did not, according to the plaintiffs’ version, fix any definite time for resuming work, though the plaintiffs expressed a desire to go on, and negotiations to the same effect continued and were had between the ¡Dlaintiffs and defendant from time to time without any results, until the 11th of February, 1886, when a letter was addressed by the plaintiffs to the defendant, demanding a definite answer whether or not they were to be permitted to perform the contract, stating at the same time that they were ready to complete it on their part, and requesting an immediate reply.

The defendant claims that on the 19th of February following it caused verbal notice to be given to the plaintiffs to the effect that they were at liberty to resume work under the contract. There is some conflict in the evidence as to whether this notice was in fact given as early as that date, but at all events it seems to be the first attempt made on the part of the defendant to comply with the plaintiffs’ letter of the 11th of February, or the demand previously made; and if this notice was given it seems to be the first definite move on defendant’s part to permit plaintiffs to resume the work. In the meantime Foley and Buckley failing to receive an earlier reply sought and obtained work elsewhere and Sullivan, apparently abandoning the contract, obtained general employment in the defendant’s quarry. On the 24th of February the defendant’s agent wrote to the plaintiffs notifying them to proceed with the tunnel, which the plaintiffs declined to do unless the defendant would compensate them for their damages occasioned by the unreasonable suspension of the work, or would signify its willingness to do so. This demand on the part of the plaintiffs was not complied with. The plaintiffs never in fact resumed the work and brought this action to recover their damages.

While it may be said that the acts and omissions of the defendant in regard to the contract prior to the 11th day of February were waived by the plaintiffs’ letter of that date offering to go on with the work, had the defendant consented, the question still remains whether the delay in answering the plaintiffs’ letter, or complying with their definite request, was unreasonable; and upon this question the negotiations between the parties prior to the date of the letter, the condition in which the plaintiffs were placed after the suspension, and the fact that in the meantime they sought and obtained employment elsewhere, as well as the conduct and motives of the defendant and all the other circumstances were to be considered. If the defendant’s permission to allow the plaintiffs to resume work under the contract was unreasonably withheld or delayed the plaintiffs under the circumstances had the right to treat the contract as broken and to seek and obtain other *750employment as they did. The breach of the contract was predicated on the unreasonable delay of the defendant to permit the contractors to go on with the work after having been requested to do so, and the evidence on this point being conflicting and of such a character that different inferences could be drawn from it, a question of fact was presented.

The trial court submitted to the jury the question as to how long the work was actually to be suspended under the agreement between the plaintiffs and the defendant, and also the question whether the defendant’s delay in omitting to notify the plaintiffs to resume work after request was or was not, under all the circumstances of the case, unreasonable, instructing them that if in their opinion the delay on the part of the defendant was unreasonable then a breach of the contract was established. We think the verdict of the jury must be taken as a determination of this question in favor of the plaintiffs. It is true that reasonable time, or as in this case whether the delay was reasonable or not, is generally a question of law. But that is so only when the facts are clearly established, or are undisputed or admitted If the facts are not clearly established, or if the question of time depends upon other controverted facts, or where the motives of a party enter into the question, it must necessarily be submitted to the jury as a question of fact. *Mead*v. *Parker,*111 N. Y., *262; 19*N. Y. State Rep., 363; *Lawrence*v. *The Ocean Ins. Co.,*11 John., 241; 2 Parsons on Contracts, p. 662, note O; *Howe*v. *Huntington,*15 Me., 354; *Hill*v. *Hobart,*16 id., 164; *Greene*v. *Dingley, 24*id., 131; *Crocker & Co.*v. *Hemp Co., 3*Sumner, 530; *Ellis*v. *Thompson,*3 M. & W., 445.

We think the evidence in this case as to the period of time during which the work was to be suspended by agreement of the parties, as well as that bearing upon the omission of the defendant to notify or permit the plaintiffs to resume the work within a reasonable time, upon which allegation a breach of the contract was sought to be established, was properly submitted to the jury.

As to the nonjoinder of Enright and Bradley as parties plaintiff, their connection with the contract and the work was fully disclosed by the allegations of the complaint. It was alleged that prior to the suspension of the work on the 18th of December both of them had abandoned the contract, and that the plaintiffs with defendant’s consent continued the work in the same manner as if they had been the sole original contractors. They were treated as such by the defendant as they were paid for their work from time to time as it progressed. Moreover, the omitted persons were not parties to the agreement under which the work was suspended, nor to the subsequent negotiations with the defendant for its resumption which it was claimed amounted to a breach of the contract. No recovery is claimed for anything done under the contract prior to the time they abandoned it, with the consent of all the other parties.

Under these circumstances it is by no means certain that they had any interest in this contract at the time the action was commenced. It might well be said that by the acts and agreements *751of the plaintiffs and the defendant those two persons were released from their obligations, and the plaintiffs substituted in their place as sole contractors. It is not necessary, however, to pass upon that question, as it is quite clear that the defendant has not taken that objection in the proper way.

The defect, if any, appeared upon the face of the complaint, and, therefore, the defendant could make the objection only by demurrer. Hot having done so, the objection is waived. Code, §§ 488, 498, 499. It is urged on the part of the defendant that, inasmuch as the complaint did not state that these two persons were living at the time of the commencement of the action, that a demurrer was not proper, and could not be sustained. We think that it was not necessary that the complaint should affirmatively show that the parties were living at the commencement of the action in order to make the complaint demurrable. All the other facts sufficient to warrant a demurrer appearing on the face of the complaint, and the objection having been made by reason of a non-joinder of parties plaintiff, the usual presumption of life applies for this purpose. *Burgess*v. Abbott, 1 Hill, 476; *Zabriskie v. Smith,*13 N. Y., 322; *Merritt*v. *Walsh,*32 id., 685; *De Puy*v. *Strong,*37 id., 372; *Sanders*v. Yonkers, 63 id., 489; *Eaton*v. *Bal*com, 33 How. Pr., 80; *Green*v. *Lippincott,*53 id., 33.

We have examined the exceptions taken by the defendant on the trial, and to the charge of the court, and are of opinion that none of them are tenable.

The judgment should be affirmed.

All concur.